High Court
Case Details
WP(C) 2025/2005 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. D. Baruah along with Ms. P. Das, learned counsel for the petitioner. A lso heard Ms. M. Deka, learned State Counsel as well as Ms. A. Bhattacharyya, le arned counsel representing respondent No.3. This writ petition is directed again st the judgement and award dated 17.11.2003 passed by the learned Presiding Offi cer, Labour Court, Dibrugrah in reference Case No. 24/2000. By the said award, w hile answering the following issues in favour of the workman, direction has been issued for reinstatement of the workman with promotion to the post of Turner Gr ade-A with full backwages. (cid:28)(1) Whether the management of Napuk T.E. of Singlo (1) Tea Co. Ltd., were justi fied in dismissing Shri Hara Kanta Bhakta, Turner (cid:28)B (cid:29) Grade from the services of the Company w.e.f. 12.12.1998? (2) If not, is the workman entitled to re-instatement with promotion to Turner (cid:28) A (cid:29) Grade or any other relief in lieu thereof ? (cid:29) 2. The whole controversy arose when the workman declined to accept his sala ry since December, 1994. At that point of time, he was working as Turner Grade-B . According to the workman, he was entitled to get promotion and the management having denied the same, he was within his right not to accept salary on protest. On the other hand, it is the stand of the management that by not accepting the salary, the workman indulged in violation of discipline in the Tea Estate. It is the further case of the management that by not accepting the salary, the workma n wanted to give colour of exploitation of labour. 3. The stalemate of not receiving salary continued in 1998 when the workman was dismissed from service on 18.12.1998 pursuant to a domestic enquiry conduct ed against him. In the domestic enquiry, the charge against the workman was that of violation of the order of the superior authority by not accepting salary in the post of Turner Grade-B. According to the charge, the same was in gross viola tion of the standing rules of the Company and dis-obedience of the reasonable or ders of the superior, causing serious problem to the Company. 4. In the enquiry, the aforesaid charge against the workman stood establish ed. It was the definite case of the management that there being no post of Turne r Grade-A, there was no question of promoting the petitioner to the said grade. On the other hand, it was the case of the workman that since he was allowed to h old charge of the particular unit, he was entitled to get promotion with promoti onal pay. 5. After the dismissal of the workman from service pursuant to the said dom estic enquiry, an industrial dispute was raised as per the provisions of the Ind ustrial Disputes Act, 1947, on the basis of which, the Govt. of Assam in the Lab our and Employment Department vide its notification dated 15.11.2000 referred th e above quoted issues for adjudication to the learned Labour Court at Diburgarh. Adjudicating the aforesaid issues in Reference Case No. 24/2000, the lea 6. rned Labour Court by its impugned award issued direction for reinstatement of th e workman along with promotion as Turner Grade-A. Such reinstatement is to be ef fective from the date of dismissal from service i.e. 18.12.1998 and the workman would be entitled to all his back wages. 7. Mr. D. Baruah, learned counsel for the petitioner submits that apart fro m the fact that the workman could not have demanded promotion as a matter of rig ht., there is also no post of Turner Grade-A in the Tea Estate. He further submi ts that the learned Labour Court could not have presumed that the workman was wo rking in the promotional post, more particularly, when the workman himself did n ot project any such case. 8. Countering the above argument, Ms. A. Bhattacharyya, learned counsel for the workman submits that the workman declined to receive salary on protest when he was not given promotion although he was entitled to the same. She further su bmits that the workman having been given the charge of the unit, he was entitled to get promotion on regular basis with consequential salary in the promotional post. 9. The fact of the matter is that the workman was in the post of Turner Gra de-B. On retirement of the incharge of the unit, he was allowed to hold charge o f the workshop and continued to perform his duties. However, he refused to accep t salary on the ground of denial of promotion. According to him, he was entitled to get promotion as a matter of right with consequential promotional pay. Howev er, nothing could be shown that there was any promotional post like Turner Grade -A. That apart, the workman could not have demanded promotion as a matter of rig ht. It was in such circumstances, refusal to accept salary was not reasonable on his part. Even if he had felt that he was deprived of promotion, while agitatin g his grievance on that ground, he could have accepted his due salary as Turner Grade-B. 10. When the aforesaid situation led to stalemate in respect of payment and receipt of salary by the workman and there was indiscipline, the management thou ght it prudent to hold an enquiry upon levelling the aforementioned charge again st the workman. In the domestic enquiry, the charge stood established, consequen t upon which the workman was dismissed from service. 11.
Decision
While adjudicating the reference, the learned Labour Court has held that the workman, in fact, was holding a promotional post of Turner Grade-A, however , there is nothing to indicate in the award that the learned Labour Court record ed the said finding on the basis of any material on record. While it is the spec ific case of the management that there was no promotional post of Turner Grade-A , it was incumbent on the part of the learned Labour Court to find out whether a ny such promotional post was there or not. That apart, the learned Labour Court could not have presumed that the workman was holding the promotional post entitl ing him to the salary of the promotional post without stating anything as to whe ther in the avenue of promotion, there was any such post and if so what was the time scale of pay. 12. In view of the above, I am of the considered opinion that the impugned a ward is not sustainable in law so far as the same relates to direction for reins tatement of the workman in the promotional post of Turner grade-A and payment of full back wages. 13. As noted above, the whole controversy arose because of the non-receipt o f salary by the workman from 1994 to 18.12.1998. Mr. Baruah, learned counsel for the petitioner submits that as per the instruction, the workman has attained th e age of superannuation on 31.12.2011. If that be so, there is no question of re instatement of the workman in service. However, Ms. A. Bhattacharyya, learned co unsel for the workman submits that she has no instruction in this regard. 14. Non-receipt of salary by the workman was under a misconception that he w as entitled to get promotion and the same was denied to him. It was in such circ umstances, the workman declined to accept the salary. Accordingly, I am of the c onsidered opinion that the dismissal of the workman from service as Turner Grade -B was not warranted in the circumstances of the case and accordingly while sett ing aside the order of dismissal from service, it is hereby provided that upon d eeming the workman to have continued in service all throughout, he however, will not be entitled to full back wages. The arrear salary for the period from Decem ber, 1994 to 18.12.1998 shall be paid to him, if not already drawn. It is submit ted that the workman was in receipt of last pay drawn from 19.6.2006 onwards as per the interim order passed by this Court. It is hereby provided that the workm an would be entitled to 50% of the back wages from 19.12.1998 to 18.6.2006, the date from which he has drawn the last pay. It is also provided that whatever the workman has drawn on the basis of the interim order dated 19.6.2006 passed in M C No. 1708/2006, the same shall not be recovered from the workman. With the above direction and observation, the writ petition stands dispo 15. sed of with the modification of the impugned award, without however, any order a s to costs.